Case C-505/07: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 November 2007 — Compañía Española de Comercialización de Aceite, SA v Asociación Española de la Industria y Comercio Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (ANIERAC) and Administración del Estado
Date: 2007-11-19
Institutions: Court of Justice
Subjects: competition policy, interpretation of the law, olive oil, producer organisation, storage, storage premium

9.2.2008

EN

Official Journal of the European Union

C 37/5

Pleas in law and main arguments

by Article 66(14)

By the Commission decision of 5 June 2002 (1) ‘on State aid …
in the form of tax exemptions and subsidised loans to public
utilities with a majority public capital holding’, the income tax
exemption scheme provided for by Article 3(70) of Law
No 549/1995 and
of Decree-Law
No 331/1993, as converted and amended, in favour of joint-
stock companies with majority public
shareholdings and
providing local public utilities was declared to constitute State
aid incompatible with the common market. The Commission
relate to specific companies but covered
decision did not
companies established within the terms of Article 22 of Law
No 241/1990 with majority public shareholdings. The decision
was for that reason not notified to any company (and was not
notified to the appellant) as no individual addressees were speci-
fically identified. The Italian State, by way of Legislative Decree
No 10 of 15 February 2007, gave effect to the abovementioned
decision, allocating the task of recovery to the revenue authori-
ties. Accordingly, on 20 March 2007, the Guastalla revenue
office sent to the appellant company the following payment
demands: payment demand No 3796 of 15 March 2007 for the
capital
of
EUR 1 912 128,47
EUR 2 192 225; payment demand No 3799 of 15 March 2007
for
the capital sum of EUR 815 406,94 plus interest of
EUR 783 529; and payment demand No 3800 of 15 March
2007 for the capital sum of EUR 439 549,29 plus interest of
EUR 712 588.

sum of

interest

plus

is not a company with a
The appellant company, however,
majority public shareholding, but is, rather, entirely public. For
that reason, ‘the Commission's findings and its decision’ cannot
apply to it.

The appellant has in-house responsibility for local public utilities
in relation to the eight associated communes, and was estab-
lished specifically for that purpose in accordance with the
arrangements set out in the legislation.

The appellant manages the public utilities under a private struc-
ture, within an essentially local context, without being able to
influence free competition, which cannot exist as there is no
market.

A company with a wholly public shareholding is nothing other
than an indirect body of the associated communes, which are
the actual recipients of the fiscal aid with which the Commis-
sion takes issue.

On objective and subjective grounds, therefore, the tax exemp-
tion granted to the appellant cannot be classified as unwarranted
State aid at variance with the requirements of Article 87 EC.

For the reasons outlined, an action was brought before the
Court of First Instance against the abovementioned Commission
decision. It was registered as Case T-176/07 and assigned to the
Fourth Chamber. A decision in the case was given by way of an
order of
Instance of
17 September 2007 based on the ground of failure to comply
with the time-limit
laid down in the fifth paragraph of
Article 230 EC, according to which the action for annulment
ought to have been brought within two months of the publica-

the Court of First

inadmissibility of

tion of the contested measure, or of its notification to the appel-
lant or, in the absence thereof, of the day on which it came to
the knowledge of the latter, as the case may be, in accordance
with Article 102(1) of the Rules of Procedure of the Court of
First Instance.

It is submitted that that finding is without basis, also in the light
of the judgments in Case 730/79 Philip Morris Holland (2), Case
323/82 Intermills (3), Case T-358/94 Air France (4), and, in par-
ticular, the judgment of the Third Chamber of the Court of
Justice in Joined Cases C-346/03 and C-529/03 Atzeni and
Others (5), for which reason it is requested in the present appeal
that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought imme-
diately after the appellant company had become aware that it
was one of the addressees of the Commission's decision, that is
to say, when it was notified of the payment demands issued by
the revenue office.

The order of the Court of First Instance is also challenged on
the ground that
to a misapplication of
effect
Article 225 EC.

it gave

The application for annulment of the Commission decision is to
be treated as inherently linked to the request that the appellant
not be made subject to that decision. It is accordingly requested
that the order made at first instance be amended, also in regard
to the declared lack of competence ratione materiae on the part
of the Court of First Instance.

(1) OJ 2003 L 77, p. 21.
(2) [1980] ECR 2671.
(3) [1984] ECR 3809.
(4) [1996] ECR II-2109.
(5) [2006] ECR I-1875.

Reference for a preliminary ruling from the Tribunal
Supremo (Spain)
lodged on 19 November 2007 —
Compañía Española de Comercialización de Aceite, SA v
Asociación
y Comercio
la
Exportador de Aceite de Oliva (ASOLIVA), Asociación
Nacional de Industriales Envasadores y Refinadores de
Aceites Comestibles (ANIERAC) and Administración del
Estado

Industria

Española

de

(Case C-505/07)

(2008/C 37/06)

Language of the case: Spanish

Referring court

Tribunal Supremo

C 37/6

EN

Official Journal of the European Union

9.2.2008

Parties to the main proceedings

Applicant: Compañía Española de Comercialización de Aceite,
SA

Defendants: Asociación Española de la Industria y Comercio
Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional
de Industriales Envasadores y Refinadores de Aceites Comesti-
bles (ANIERAC) and Administración del Estado

Questions referred

1. Does

the reference to ‘bodies’ authorised to conclude
in Article 12a of
contracts for the storage of olive oil
Council Regulation (EEC) No 136/66 (1) of 22 September
1966 on the establishment of a common organisation of the
market in oils and fats, in the version introduced by Regu-
lation 1638/98 (2), cover a company whose shareholders
predominantly comprise producers, oil pressers and olive
growers' cooperatives, as well as financial institutions? Can a
company with these characteristics be considered equivalent
to producer groups and associations thereof
recognised
under Regulation (EC) 952/97 (3)?

2. In the event that the company falls within the description of
‘bodies’ capable of carrying out storage activities, can the
‘approval by the Member State’ which such bodies require by
virtue of Article 12a of Regulation 136/66, be obtained as
part of an application for a specific exemption (‘authori-
sation’) made to the national competition authorities?

in each case or, on the contrary,

3. Does Article 12a of Regulation 136/66 constitute an abso-
lute requirement that the Commission authorise the private
storage of olive oil
is it
compatible with the existence of a mechanism agreed
between producers for the privately financed acquisition and
storage of such olive oil, which would be activated exclu-
sively on the same terms and conditions which activate Com-
munity-financed private storage, with the aim of supple-
menting and speeding up such Community-financed storage
without going beyond it?

4. Can the reasoning given by the Court of Justice in Case
C-137/00 Milk Marque [2003] ECR I-7975 relating to the
application by domestic authorities of national competition
rules to producers' agreements which are capable, in prin-
ciple, of being covered by Article 2 of Council Regulation
No 26 (4) (applying certain rules of competition to produc-
tion of and trade in agricultural products) be extended to
the
agreements which, by their nature and by nature of
sector in question, could affect the Community market in
olive oil as a whole?

5. In the event that the national competition authorities are
competent
laws to the aforementioned
agreements which are capable of affecting the common orga-
nisation of the market in fats, can those authorities refuse

to apply national

absolutely to allow a company such as the appellant to make
use of the storage mechanisms for olive oil even in situations
of ‘serious disturbance’ as contemplated by Article 12a of
Regulation 136/66?

(1) OJ English Special Edition 1965-1966, p. 221.
(2) Council Regulation (EC) No 1638/98 of 20 July 1998 amending
Regulation No 136/66/EEC on the establishment of a common orga-
nisation of the markets in oils and fats (OJ 1998 L 210, p. 32).

(3) Council Regulation (EC) No 952/97 of 20 May 1997 on producer

groups and associations thereof (OJ 1997 L 142, p. 30).

(4) OJ English Special Edition 1959-1962, p. 129.

Reference for a preliminary ruling from the Audiencia
Provincial de la Coruña (Spain) lodged on 20 November
2007 — Lubricantes
S.L.
(Lubricarga) v Petrogal Española, S.A., now ‘GALP Energía
España SAU’)

y Carburantes Galaicos,

(Case C-506/07)

(2008/C 37/07)

Language of the case: Spanish

Referring court

Audiencia Provincial de la Coruña

Parties to the main proceedings

Applicant: Lubricantes y Carburantes Galaicos, S.L. (Lubricarga)

Defendant: Petrogal Española, S.A., now ‘GALP Energía España
SAU’

Questions referred

1. If

the contract concluded between Lubricarga S.L. and
Petrogal S.A. is de minimis, is it excluded in all cases from
Article [81] of the Treaty or, notwithstanding that classifica-
tion, will that article apply to the contract in the event that
the proprietor of the service station is obliged to observe the
final public selling price set by the supplier and/or that
exclusive purchasing obligations and prohibitions of compe-
tition are imposed on the reseller but are not made subject
to the time limitations laid down in Commission Regulation
(EEC) No 1984/83 (1) and Commission Regulation (EC)
No 2790/1999 (2)?